Federal Court of Australia ABD18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FCA 1294 Appeal from: ABD18 v Minister for Home Affairs [2019] FCCA 3012 File number: WAD 620 of 2019 Judgment of: COLVIN J Date of judgment: 31 October 2022 Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court affirming a decision of the Immigration Assessment Authority - where IAA affirmed decision of the Minister's delegate refusing the appellant a protection visa - whether the IAA failed to consider the appellant's mental health in determining whether to accept the new information - whether the IAA acted unreasonably in not considering the exercise of its powers under s 473DC of the Migration Act 1958 (Cth) in respect of the appellant's mental health - whether the IAA accepted that the appellant suffered from mental health issues and made a claim to that effect - appeal dismissed Legislation: Migration Act 1958 (Cth) ss 473CC, 473DB, 473DC, 473DD, Part 7AA Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 DWN042 v The Republic of Nauru [2017] HCA 56 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 38 Date of hearing: 25 October 2022 Counsel for the Appellant: Mr TM McKenna (pro bono) Solicitor for the Appellant: Gilbert + Tobin Counsel for the First Respondent: Mr VN Ghosh Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS WAD 620 of 2019 BETWEEN: ABD18 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: COLVIN J DATE OF ORDER: 31 october 2022 THE COURT ORDERS THAT: 1. The name of the first respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs. 2. The appeal is dismissed. 3. The appellant pay the first respondent's costs of the appeal to be assessed on a lump sum basis by a registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 The appellant is a citizen of Afghanistan. He arrived on Christmas Island in 2013 and sought protection as a refugee. His subsequent application for a safe haven enterprise visa was refused. The refusal was affirmed by the Immigration Assessment Authority. After judicial review proceedings in the Federal Circuit Court, his application was remitted to the Authority for reconsideration. Upon reconsideration by the Authority, it again determined that the decision to refuse his application should be affirmed. Further proceedings in the Circuit Court were unsuccessful. The applicant now brings an appeal to this Court. 2 The Authority's decision-making power and duty derives from Part 7AA of the Migration Act 1958 (Cth). It must conduct a review of certain 'fact track' decisions made under the Act: s 473CC. It must do so by considering the material provided to it by the Secretary of the Minister's department concerning each such decision: s 473DB. It is confined to considering that material unless it decides to 'get any documents or information' (defined as 'new information'). It must not consider any new information unless the requirements of s 473DD are satisfied. Those requirements include the need for the Authority to be satisfied 'that there are exceptional circumstances to justify considering the new information': s 473DD(a). 3 The appeal is confined to two grounds both of which concern the approach taken by the Authority when dealing with a claim which the appellant says concerned his mental health. The relevant claim was made in a submission to the Authority and an issue arose as to whether the submission contained 'new information'. The relevant part of the submission was expressed as follows: … the IAA should find that the Applicant faces a real risk of significant harm when attempting to reach his home region and/or when seeking to access essential health and other services not available to him in his home region of Malistan. Given that the Applicant has been assessed by the Department as being extremely vulnerable, it is probable that he will need to seek assistance from health and other services unavailable in his remote rural home region. The risk of harm he would face in attempting to travel by road in Ghazni is very real. 4 The submission went on to provide information to support the contention that there was a very real risk of harm for a person travelling by road in Ghazni. The reference to the appellant having been assessed as 'extremely vulnerable' was footnoted to the following: The Applicant was the recipient of Primary Application Information Service, meaning he had been assessed as being 'exceptionally vulnerable': see Department of Home Affairs, Additional Guidelines on PAIS eligibility criteria and assessment process [reference to a URL]. 5 It was common ground that the eligibility criteria for the Primary Application Information Service or PAIS were expressed in a policy instrument which did not include an express reference to mental health issues. Rather, it referred to instances where a visa applicant was an unaccompanied minor or where an applicant was not represented and had been determined to be 'exceptionally vulnerable'. 6 The Circuit Court judge found no error in the way in which the Authority dealt with the aspect of the appellant's claims that were advanced in the part of the submission quoted above (Claim). In this Court, the appellant identified two alleged errors by the primary judge, namely: (1) not finding that the Authority failed to consider the appellant's mental health with the consequence that it fell into jurisdictional error when it found that there were no exceptional circumstances pursuant to s 473DD to justify the consideration of new information that the appellant may need to travel out of Malistan to access health services; and (2) failing to find that the Authority acted unreasonably in not considering exercising its powers under s 473DC (to get in new information) in respect of the appellant's mental health and so fell into jurisdictional error. 7 In the notice of appeal the first ground was cast as a failure to take into account a consideration that the Authority was required to take into account. However, in the course of oral submissions it was accepted that the ground should be treated as a contention that the primary judge should have found that the Authority failed to consider the Claim (on the basis that the Authority was required to consider the appellant's claims). Outcome 8 For the following reasons, no error in the reasoning of the primary judge has been demonstrated and the appeal must be dismissed with costs. Relevant parts of the Authority's reasons 9 Before dealing with the substance of the appellant's claims the Authority addressed the issue of new information. It began by referring to the fact that the applicant had initially claimed that 'both of his parents had gone missing in 2009 and were presumed dead'. It then recorded that in 2017 the appellant had been confronted with other evidence and he admitted that his father was then alive and living in Kabul. The Authority then considered whether it should now receive information to the effect that the appellant's father had died and claims that the appellant does not have a harmonious relationship with his family in Kabul. As to those claims, the Authority reasoned (para 9): I consider that the applicant's previous false claims of his parent's deaths, his other false claims, the inconsistency with the family support claim noted above, and the timing of this claim cast significant doubt on its credibility. Having regard to all of this I am not satisfied that there are exceptional circumstances to justify considering this new information. 10 The Authority then dealt with certain other claims and whether they raised new information that should be received (paras 10-12), before going on to consider the Claim as raised in the submission to the Authority. It recited the Claim and the reliance upon the fact that the applicant had been referred for PAIS assistance which was said to mean that he had been assessed as being 'extremely vulnerable'. As to whether the Claim was new information, the Tribunal observed (para 14): Although the applicant asked at the interview that his mental health 'be taken into consideration' he did not claim to have any diagnosed mental health conditions, to require treatment or care, or to fear harm from accessing or denial of access to care in Afghanistan. The applicant did not indicate any fear of persecution or other harm in respect to this claim and I am satisfied that it did not otherwise arise and as such is new information. 11 I observe that the Claim did not refer to a need to seek treatment for any mental health condition. Rather, it referred more generically to the need to travel 'to access essential health and other services'. I also note that a separate submission to the Authority as to why the Authority should consider the new information in the submission made no such suggestion that the appellant sought to adduce new information as to his mental health. 12 Returning to the reasons of the Authority, they then dealt with whether the Claim should be received as new information. The Authority reasoned in the following way (para 15): There is no information before me identifying the reason(s) that the applicant was deemed eligible for PAIS assistance, or that the invitation related to any medical or mental health concerns. The applicant, having accepted the PAIS assistance, was assisted by a migration agent to prepare the application and at the interview. Although the applicant asked at the interview that his mental health 'be taken into consideration', he did not provide any evidence in his application, at the interview or in his IAA submission that he has been assessed by a medical practitioner, diagnosed with any condition, or that he is on any treatment plan or medication. He has not provided any evidence that his physical or mental health precludes him from any work or has impacted on his ability to find and maintain work. Apart from his claim to suffer tension, sleep problems and some forgetfulness, he has not provided any evidence that his lifestyle in Australia has been, or is being affected by medical or mental health issues. I also consider relevant the Full Court of the Federal Court of Australia finding that exposing the IAA to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of 'fast track' decision making. Having regard to all of the above, I am not satisfied that there are exceptional circumstances to justify considering this new information. 13 No issue was taken with the accuracy or completeness of the matters addressed by the Authority in the above passage. In effect, the Authority reasoned that in the absence of any evidence concerning respects in which the appellant's mental health or physical health might bear upon his application, the requirement for exceptional circumstances had not been met. As part of that reasoning it found that there was nothing to indicate that the PAIS assistance was related to any medical or mental health concerns. 14 The reasons then continued by describing the Claim as 'what appears to be a new claim that the applicant will face harm in Malistan due to the existence of Taliban checkpoints and roadblocks'. The claim was expressed in the following terms (para 16): The applicant claims that these checkpoints or roadblocks will expose him to harm, including when attempting to reach Malistan, accessing essential health and other services which exist outside Malistan, and due to restricted food availability in that area. 15 The Tribunal accepted that there was an explanation as to why the claim had not been raised previously 'and that there are exceptional circumstances to justify considering it'. Therefore, that part of the Claim was received as new information. So, to the extent that the submission might be said to raise a claim that the appellant suffered from particular mental or physical health issues of a kind that might be relevant to his claim to protection, it was not received as new information. However, to the extent that the Claim raised issues concerning exposure to harm when seeking to travel to obtain essential health and other services as well as access to food, that aspect was received as new information. 16 The Tribunal then dealt with whether it should receive certain other information as new information (paras 17-20). Those aspects are not relevant for present purposes save that they indicate a degree of thoroughness in identifying and considering the extent to which matters raised in the appellant's submission to the Authority raised new information. 17 Thereafter, the Tribunal began its substantive assessment by outlining the appellant's claims to protection (para 21). It also identified further information that had been provided by a migration agent after the appellant had been interviewed (para 22). A list of those matters concluded with the following: He is under constant tension and sometimes he can't sleep or remember things. He asked that his mental health be taken into consideration. 18 It was accepted that the above statement was an accurate record of what had been put to the Minister's delegate prior to the making of the original decision to refuse his application. 19 The Authority then addressed the question whether the appellant had a well-founded fear of persecution (commencing at para 24). The Reviewer began with a consideration of false claims and found that the appellant had embellished his claimed history to enhance his profile and only admitted his false claims when confronted with them (para 25). Then the Authority's reasons proceeded as follows (para 26): While I note his claim that he is under tension and has difficulty remembering things, I do not accept that his false claims were due in any way to mental health issues or lapses in memory. I consider that the fact that the falsehoods went beyond merely stating that he had no family in Afghanistan, together with his conduct in maintaining his false claims indicates that he was deliberately embellishing or fabricating claims. I do not accept that his proffered explanation is the only reason that he made these false claims and this leads me to have significant concerns with the credibility of the applicant's evidence in relation to his past and future profile. I have taken this into account in my assessment of his current claims. 20 The above paragraph provided the key foundation for the case advanced by the appellant on both of his grounds. The claim made was that the above reasoning involved an acceptance by the Authority that the appellant suffered from mental health issues. The foothold for that submission was said to be found in the sentence: 'I do not accept that his proffered explanation is the only reason that he made these false claims and this leads me to have significant concerns with the credibility of the applicant's evidence in relation to his past and future profile' (emphasis added). It was said that the reference to the 'proffered explanation' (namely mental health issues or lapse in memory) not being the 'only reason' for the making of the false claims must involve a finding that it was a reason. 21 The whole of the case for the appellant rested on the acceptance of the submission that the Authority had approached the appellant's claims on the basis of an acceptance that the appellant experienced mental health issues and they were a part of the claims he had made. From that foundation, the appellant submitted that there had been a failure to consider that aspect both at the time of evaluating whether there were exceptional circumstances to justify the consideration of the claim (ground 1) and legal unreasonableness in failing to exercise the power to get in new information about those mental health issues (ground 2). Particular reliance was placed upon an observation by the primary judge to the effect that the Authority may well have formed a different view about whether his mental health condition affected his ability to travel had it made inquiries about why the PAIS assistance was provided. 22 It was made clear by counsel that it was necessary for the foundational submission to be accepted for the appeal to succeed. 23 For the following reasons, I am unable to accept the foundational submission. Proper approach to interpreting the reasons of the Authority 24 The court is not 'astute to discern error' when it comes to considering the meaning of reasons given by a decision-maker exercising administrative authority: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25]; citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Court is not to be concerned with that which is evidently 'looseness in language' or 'unhappy phrasing': Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Rather, the reasons 'must be read fairly and not in an unduly critical manner': BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). 25 The reasons of an administrative decision maker must be considered 'fairly as a whole': Plaintiff M64/2015 at [60] (French CJ, Bell, Keane and Gordon JJ), [73] (Gageler J). They must also be read and understood within the statutory context in which the decision was made: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [70], [91]-[92]. They should not be treated in the same way as judicial reasons: Wu Shan Liang at 271-272. 26 Relatedly, 'the record of a hearing should not be scrutinised in an attempt to elucidate grounds which were not, on a fair and reasonable construction of the record, raised for decision': DWN042 v The Republic of Nauru [2017] HCA 56 at [25] (Keane, Nettle and Edelman JJ). Proper reading of the Authority's reasons 27 The substantive reasoning in the passage relied upon by the appellant must be read in light of the earlier reasoning as to whether the Claim raised new information. At that point, the Authority emphasised the lack of any evidence to the effect that the appellant suffered from an assessed or diagnosed medical condition or as to any treatment for such a condition. It was the lack of evidence that provided the basis for the Authority's conclusion that there were no exceptional circumstances to justify considering any new information to the effect that the appellant's eligibility for PAIS assistance 'related to any medical or mental health concerns'. 28 It may be observed that the reasoning by the Authority in that regard was not called into question and rightly so. If indeed there was evidence of a mental health condition that might assist in the formulation of claims to support the visa application then the matters stated in the Claim would be a very obscure way to refer to that evidence. Allowing for the terms of the policy (referenced by footnote), the reliance upon the fact that PAIS assistance had been provided was no more than a generalised statement that the appellant had been assessed as being 'extremely vulnerable' for the purposes of that policy. 29 Then, in the part of the substantive reasons relied upon by the appellant (para 26, quoted above), the reasons begin by referring to the claim that the appellant was 'under tension and has difficulty remembering things'. This is to adopt the language used earlier (para 22) to describe what had been put by way of submission after the appellant's interview by the delegate of the Minister. Significantly, it was to refer to the full extent of the information that formed part of the record provided by the Secretary to the Authority and no more. Therefore, it was not a reference to the contents of the Claim or any significance to be given to the fact of PAIS assistance, being new information that the Authority had not accepted. It would be odd if this material which the Tribunal could not consider (because it had rejected the material as new information) was being brought into account at this point. Indeed, it would be contrary to the terms of s 473DD. 30 The 'proffered explanation' to which the Authority made reference at this point was the appellant's claim that he had difficulty sleeping and that sometimes he had difficulty remembering things. It is not a reference to the Claim. It is the proffered explanation which the Authority is considering and nothing more. It was the proffered explanation that was not accepted as the 'only reason' that the appellant made the false claims. Considered in context, the Authority was doing no more than rejecting a contention that his false claims can be attributed to his claims that he has difficulty sleeping and remembering things. Given the terms of the immediately preceding reasons the evident 'other reasons' in contemplation by the Authority are that he was embellishing his claims to enhance his profile and had admitted their falsity when confronted with evidence to that effect. 31 Therefore, there is no real basis for a claim that the reasons mean that the Authority accepted that one of the reasons for the false claims was a mental health issue that went beyond the statement about being under tension and having difficulty sleeping and remembering things. As to that more limited claim, it was plainly rejected as an explanation in the first sentence. It was not in play when the proffered explanation was rejected as the only reason. Implicitly, the Authority accepted that the appellant had difficulty sleeping and remembering things but found that was not an explanation for his false claims. Consequences for the appeal grounds 32 The above conclusion means that no error has been demonstrated in the conclusion reached by the primary judge. As to ground 1, the primary judge concluded correctly that the Authority's focus on the lack of evidence underpinning the new information made it clear that the Authority considered that the information was not of a kind that may have affected the outcome: ABD19v Minister for Home Affairs [2019] FCCA 3012 at [93]. His Honour went on to say (at [94]): When reading the IAA's decision as a whole, it is clear that the IAA has considered the significance of this new, speculative information and whether it may have affected the relevant decision. At [15], the IAA explained that there was nothing before it to indicate that the applicant's mental health was a factor that would cause him significant harm. In the Court's view, [15] clearly indicates that the IAA engaged with the significance of the new claim and whether it may have affected the result. The IAA expressly noted that there was nothing to indicate why the PAIS assistance had been provided. Had that information been supplied, or had the applicant advanced evidence of a medical condition or a need for treatment, then the IAA may well have formed a different view about whether the applicant's claimed mental health condition affected his ability to travel in Afghanistan. Unfortunately, the new information that was provided was sparse and unsupported. There was, for example, no material or evidence that the applicant was the subject of any treatment plan or medication that would have required him to travel to obtain either. 33 The above passage was relied upon as part of the particulars to ground 1 to support a submission to the effect that it demonstrated a failure to consider the Claim especially given the view that the reason for the PAIS assistance, if supplied, may have caused the Authority to form a different view about the appellant's ability to travel. However, the conjecture by the primary judge was simply a way of expressing the fact that there was no such information before the Authority. The absence of that information did not suggest its existence. Indeed, as I have observed, if there was such information, the reference to the fact of PAIS assistance was a very obscure way to refer to its existence. 34 It follows that the issue of materiality does not arise. However, I note that the Minister submitted that the Authority rejected the claim that travel from Malistan would expose the appellant to the risk of being detained, abducted or harmed at checkpoints or roadblocks. This appears to be correct (see para 49). Therefore, had I been persuaded that there was merit in ground 1, there would have been a real issue as to whether materiality had been demonstrated because the Claim concerned the harm that might arise from travel. 35 As to ground 2, an unreasonable failure to consider whether to exercise the power conferred by s 473DC to get in new information may be a jurisdictional error: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [20] (Kiefel CJ, Bell, Gageler and Keane JJ). It may be a jurisdictional error because of an implied condition to the effect that the decision-making process to be conducted by the Authority must be intelligible. 36 Here, the claim that the Authority ought to have considered exercising its discretion under s 473DC to obtain new information about the appellant's mental health rested upon the claim that the Authority had found that the mental health claims were a reason why the appellant made false claims. For reasons that have been given, that claim is not accepted. 37 Further, the submissions to the effect that the appellant's mental health issues were a critical part of his claim to protection such that it was unreasonable to consider exercising the power to obtain new information about them were without foundation. There was no record of any claim of mental health issues being raised on the materials that were before the Authority. The terms in which the Claim was expressed in the submission provided to the Authority were insufficient to support the contention that the case for the appellant depended in a critical or significant way upon the state of his mental health. It simply provided no indication or suggestion of that kind. In those circumstances, it could not be said to be unreasonable for the Authority to proceed and make its decision without considering the exercise of the power under s 473DC. Nor could it be assumed that it failed to undertake any such consideration when it should have done so because the circumstances did indicate any need to do so. Conclusion 38 For those reasons, the appeal must be dismissed. It was accepted by both parties that costs should follow the event. In accordance with the usual practice those costs should be assessed on a lump sum basis if not agreed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 31 October 2022